During oral argument on Tuesday in Kucana v. Holder, the Justices challenged all three arguing attorneys on issues ranging from Congressional intent to statutory interpretation. Although it was unclear whether the Court was inclined to accept Kucana's contention that courts have jurisdiction to review decisions by the Board of Immigration Appeals denying motions to reopen immigration proceedings, it seems that the case could be decided on the minutiae of statutory text or on the legislative history behind IIRIRA.

Almost as soon as Rick Schoenfield had begun his argument on Mr. Kucana's behalf, Justice Ginsburg brought up the issue of Congress's decision to use the word "under" in Section 1252(a)(2)(B), which precludes judicial review of decisions "the authority for which is specified under [the] subchapter" to be at the discretion of the Attorney General. In Schoenfield's view, the statute's context suggests that the word "under" is properly construed as meaning "according to" or "within."

Justice Scalia expressed confusion over Schoenfield's contention that the statute's silence on motions to reopen suggested that Congress intended to preserve judicial review. Why, he asked, would Congress preclude review of judgments that are explicitly discretionary while providing review for judgments that are discretionary because of the Attorney General's authority to make them so? Schoenfield responded that Congress's intent to preserve such review can be inferred from the combination of the tradition of judicial review of decisions denying motions to reopen, and the statute's silence on the issue.

Assistant to the Solicitor General Nicole Saharsky, arguing on behalf of the United States in support of Kucana, reiterated that Congress's enumeration of those executive decisions not subject to judicial review "“ coupled with its silence with regard to motions to reopen "“ clearly demonstrated its intent to maintain courts' jurisdiction. Justice Breyer challenged her on the implications of her assertion, noting that the suggestion that every procedural decision could be subject to such oversight "makes no sense to begin with." Further, Justice Breyer identified a contradiction in the respondent's underlying concession that an original BIA decision is not necessarily subject to review, while a motion to reopen is; according to the Justice, "[b]oth are the same thing." The Court also pressed Saharsky on the potential burden on the courts that might result from a ruling in Mr. Kucana's favor. Saharsky estimated that courts annually receive roughly two to three thousand petitions for review of BIA denials of motions to reopen; however, she noted that with the exception of the Seventh Circuit, every circuit that has addressed the question of federal jurisdiction over motions to reopen "has found that the provision at issue doesn't bar judicial review."

Arguing as amicus curiae in support of the decision below, Amanda Leiter emphasized that Congress enacted IIRIRA to streamline immigration appeals and to "protect the Attorney General's discretion" from judicial review. Why, Justice Sotomayor pressed, did Congress neglect to make motions to reopen explicitly discretionary, if its intention was so clear? Leiter responded that Congress should in fact have felt compelled to clarify the reverse by explicitly protecting judicial review of motions to reopen. She noted that in many cases the Attorney General's discretion is assumed, despite statutory silence on the issue; the fact that the statute specifically indicates that other decisions are discretionary does not mean that the BIA's denial of motions to reopen is not a discretionary decision for purposes of the statute.

Why, then, Justice Breyer wanted to know, didn't Congress use the word "ancillary" in the provision to suggest that authority specified by regulation could be included in the category of decisions protected from judicial review? And further, Justice Ginsburg added, if there is a category of decisions that can be reviewed in federal court, why did "Congress put some of them in the statute and [leave] others out?" Leiter responded that the choice to specify decisions as discretionary has strong procedural implications for the Attorney General; permitting the executive to determine its own discretion by regulation lifts this burden significantly. This practice of allowing agencies to make determinations with jurisdictional consequences, Leiter pointed out, has precedent in a number of statutes.

The argument ended with a brief rebuttal from Mr. Schoenfield, who returned to the importance of Congressional intent and textual ambiguity. Judging by the Court's lines of questioning, it seems that those issues will be the defining ones in the case.

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